Defendant can withdraw pleas

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On April 1, the Wisconsin Court of Appeals held that the Department of Justice properly denied Joseph E. Koll, Jr., a gun permit, because he had two prior convictions for disorderly conduct that were based on domestic violence.

One week later, the same court held that Koll can withdraw the underlying guilty pleas, because they were entered with the understanding that they would not preclude him from possessing firearms.

The federal ban on gun possession for those convicted of misdemeanor crimes of domestic violence is a collateral consequence of the pleas. Nevertheless, the court concluded that plea withdrawal was required, because the defendant, the prosecutor, and the judge, all specifically contemplated that the pleas would not result in that indirect outcome.

In 1998, Koll pleaded guilty to two counts of disorderly conduct — specifically labeled ‘non-domestic’ — after a domestic dispute with his live-in girlfriend.

Purchase Denial

In 2007, he was denied a permit to purchase a handgun; that was the decision upheld by the Court of Appeals earlier this month. Koll v. DOJ, No. 2008AP2027 (Wis.Ct.App., Apr. 1, 2009).

In that appeal, the court held that, despite the designation as “non-domestic,” the offenses were domestic in fact, as demonstrated by the complaint, and thus, it would violate federal law for Koll to possess a firearm.

After the permit denial, Koll filed a motion to withdraw his guilty pleas. The circuit court denied the motion, concluding that it would be too prejudicial to the state to allow withdrawal.

Koll appealed, and the Court of Appeals reversed, in a one-judge opinion by Judge Lisa S. Neubauer.

It was undisputed that the pleas were taken in conformity with the procedural requirements in sec. 971.08. Also undisputed was that the effect of the federal firearms statute is a collateral consequence, rather than a direct consequence.

Nevertheless, because Koll was misinformed about the collateral consequences of the pleas, rather than ignorant of them, Judge Neubauer held that he must be allowed to withdraw the pleas, pursuant to State v. Brown, 2004 WI App 179, 276 Wis.2d 559, 687 N.W.2d 543.

In Brown, the plea agreement was deliberately crafted to include only convictions that would not require the defendant to register as a sex offender, and which were not sexual predator offenses under Chapter 980.

Misinformed

As it turned out, however, the plea agreement did not accomplish that. Two convictions required him to register as a sex offender, and a third was a sexual predator offense.

The Court of Appeals in Brown held that he was entitled to withdraw his pleas, “not because he lacked information of the pleas’ consequences, but rather because he was misinformed of those consequences by both his attorney and the prosecutor, with acquiescence by the judge (emphasis in original).” Brown, at par. 8.

Judge Neubauer concluded that the same reasoning applied to Koll.

The trial judge accepting the plea specifically noted on the record that the convictions wouldn’t carry with them any prohibition against possession of firearms.

Other comments on the record from defense counsel and the prosecutor supported this understanding of the plea.

“As in Brown, Koll’s plea agreement was purposefully crafted so as to avoid a collateral consequence, and Koll entered his plea believing that he would not be subject to that collateral consequence,” Neubauer wrote. “Koll’s belief was based on affirmative, incorrect statements made on the record by his own counsel, with acquiescence by the prosecutor and the trial court.”

Accordingly, the court held he was entitled to withdraw his pleas, and reversed and remanded for further proceedings on the original charges — battery and disorderly conduct.

Case analysis

Even though this is a one-judge opinion not eligible for publication, it is likely to result in many motions to withdraw pleas of guilty to disorderly conduct that have been entered since the federal law went into effect in 1996.

Included in Koll’s motion was a letter from his trial counsel explaining, “At the time of Mr. Koll’s plea the Federal Firearms Act, 18 USC 922(g) … was a relatively new law.

Little case law or practical experience with the enforcement of the Act was present at that time.

“It was the practice of the criminal defense bar and prosecutors to amend disorderly conduct charges from the domestic enhancer to non-domestic in an effort to prevent the federal [firearms] act from prohibiting gun ownership. It was expected that the non-domestic conviction would not likely affect Mr. Koll’s ability to possess firearms and that is the reason why the charges were amended to non-domestic.”

For the reasons discussed in my article on Koll’s other appeal (David Ziemer, “Disorderly conduct is bar to gun ownership” Wis.L.J., Apr. 3, 2009), I don’t believe that disorderly conduct is a “misdemeanor crime of domestic violence,” as defined in 18 U.S.C. 921(a)(33)(A), because it does not include, “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”

Nevertheless, given the current state of the law in Wisconsin, circuit courts should be prepared for many motions to withdraw disorderly conduct pleas that were entered with the same understanding of the law as in this case.

Defense attorneys need to advise clients, however, that there is a cost to plea withdrawal — reinstatement of the original charges.